In re City of New York

243 A.D. 809

Opinion

Decree in so far as appealed from reversed on the law and the facts, with costs, and matter remitted to the Special Term to determine the amount of damages sustained. The court erred in not awarding substantial damages. At the time the claimant conveyed the two parcels abutting on damage parcels numbered 2, 3 and 4, he excluded from the grants the fee to said damage parcels and expressly reserved to himself any award to be made in connection with the acquisition of title by the city for the land lying in the bed of East Ninety-sixth street. Moreover, both parcels conveyed by claimant have a frontage on legally and physically opened streets and no necessity for ingress or egress over damage parcels 2, 3 and 4 existed. An easement of access, under the facts disclosed by this record, will not be implied unless it is absolutely necessary in order to obtain access to the land for whose benefit it was created. Mere convenience is not sufficient. (Reis v. City of New York, 188 N. Y. 58; Bauman v. Wagner, 146 App. Div. 191-195; Matter of Brook Avenue, 40 id. 519; affd., 161 N. Y. 622.) Lazansky, P. J., Young, Carswell, Scudder and Johnston, JJ., concur.